### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20563

LAMAR BURKS, Plaintiff-Appellant

v. Judge DENISE COLLINS; PATRICIA R

. LYKOS, Harris County District Attorney; GREG ABBOTT, Texas Attorney General, Defendants-Appellees

Appeals from the United States District Court for the Southern District of Texas USDC No. 4:12-CV-2152

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Lamar Burks, T exas prisoner # 1011723, s eeks permission to proceed in forma pauperis (IFP) on appeal of a jud g m e n t dismissing his 42 U.S.C. § 1983 action as frivolous. The district court certified, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3 ) , that the appeal was not taken in good faith. By movi n g this court for leave to proceed IFP, Burks i s challenging the district c ourt’s certification decision. See Baugh v. Taylor , 117 F.3d 197, 202 (5th U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 3, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20563 Document: 00512296730 Page: 1 Date Filed: 07/03/2013No. 12-20563

Cir. 1997). To proceed I FP, a litigant m ust be economically eligible , a nd the appeal must be taken in good faith. Carson v. Polley , 689 F .2d 562, 586 (5th Cir. 1982). An appeal is taken in good faith if it raises legal points that are arguable

o n t h e m erits and thus nonfrivolous. Howard v. K ing , 707 F.2d 215, 2 20 ( 5 t h Cir. 1983). Burks argues that the district court’s decision was contrary to the holding in Skinner v. Switzer , 131 S

. Ct. 1289 (2011), because he did n o t s e e k t o invalidate his state conviction or obtain immediate release from prison. Rather, Burks contends that h e challenged the c onstitutio n ality o f two state laws, namely T exas Rule of Civil Procedure 18b and Texas Disciplinary Rul e o f Professional Conduct 8.04, as construed by the Texas Court of C riminal Appeals and an intermediate appellat e court when the courts d e nied his w rits of mandamus. Neither court, however, re l i e d o n these rules i n denying Burks’s

wr i t s . Accordingly, even if the Skinner case applied, it would be frivolous for Burks to raise this argument on appeal. See Berry v . Brady , 192 F

. 3d 504, 507 (5th Cir. 1999). Liberally construed, Burks’s brief also includes an argument that Collins violated his procedural due process rights in her c onstruction of Rule 18b when she refused to recuse herself from participating in his state habeas proceeding after becoming the subject of an investigation he initiated and, additionally, that Lykos and Abbott violated his constitutional rights in their c onstruction of Rule 8.04 b y failing to report Collins when she persisted i n p r e siding over the proceeding. However, even if Skinner, 131 S

. Ct. at 1297-99, applied to these

a r g uments, Burks has failed to present a nonfrivolous appellate issue for th e following reasons. See Howard , 707 F.2d at 220. Specifically, Burks sought two types of relief under § 1983. First, he asked the district court to order the state courts to c onduct a habeas hearing before an impartial judge. Second, he sought a f ederal court declaration and permanent injunction to remove Judge Collins from his state case.
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As to his first request for relief, “federal courts have no authority to order state courts to hold hearings in habeas matters.” O’Bryan v. Estelle , 714 F.2d 365, 408 (5th C ir. 1 983). As t o his second r equest, there is no ongoing c riminal

or civil case over which Collins is p residing; therefore, Burks’s request to remove her from his state case is moot. See Wilson v. Birnberg , 667 F.3d 591, 595 (5th Cir.), cert. denied , 133 S. Ct. 3 2 (2012); Harris v. City of Houston , 1 51 F .3d 186, 191 & n.5 (5th Cir. 1998). Moreover, B urks has not presented any c hallenge to the di strict court’s finding that his r equest for relief was m oot. Accordingly, he has n ot raised a nonfrivolous appellate i ssue as to that f inding. Se e Howard , 707 F.2d at 220; Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993). In light o f the foregoing, we dismiss Burks’s appea l a s frivolous. See Baugh , 117 F.3d at 202 n.24; 5 T H C I R
. R. 42.2. The district court’s dismissal of Burks’s § 1983 action and o ur dismissal of his appeal count a s t wo strikes for
purposes of § 1 915(g). See A depegba v. H a m m o n s , 1 0 3 F.3d 383, 3 88 (5th Cir. 1996). Burks has previously a ccumulated two strikes. See Burks v. Adams , No. 3:12-cv-00178 (S.D. Tex. Aug. 15, 2012); Burks v. Adams , No. 12-40947 (5th Cir. Jan. 18, 2013); Burks v. Delarosa , No. 4:10-cv-02117 (S.D. Tex. June 18, 2010); Burks v. Delarosa , No. 10-20444 (5th Cir. Oct. 20, 2010). He is thus BARRED from proceeding IFP in any civil action or appeal filed while he is incarcerated

or detained in any facility unless he is “und e r imminent danger o f serious physical injury.” See § 1915(g). We caution B urks that frivolous, repetitive, o r otherwise abu s iv e f i lings will invite the imposition of sanctions, including dismissal, monetary sanctions, and/or restrictions on his abil i t y t o f i le pleadings in this court and any court subject t o this court’s jurisdiction. To avoid such sanctions, Burks should review his pending appeals and actions and move to dismiss any that are frivolous. APPEAL DISMISSED; IFP MOTION DENIED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTION WARNING ISSUED.

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